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Marital Property on the Chopping Block:

Is It Always 50/50?

In most equitable distribution cases, the division of marital property is an equal division. The policy of the state is to divide the marital estate equally based on the legal notion that marriage is a partnership and both spouses should walk away with an equal share of the assets and debts. 

The Rule and the Exception

The general rule is that marital property must be divided equally. North Carolina law says there “shall be an equal division . . . of marital property . . . unless the court determines that an equal division is not equitable.” NC Gen. Stat. §50-20. Like most laws, there is an exception to the 50/50 rule. When an equal division would not be fair, based on factors listed in the statute, the judge has the authority to divide the marital estate unequally. When the judge rules on the value of the marital estate, he or she must then determine which assets and debts to award to each spouse. In doing this, the judge will also decide if the facts of the case justify giving one spouse more than the other. 

The Factors

he court has very broad authority to decide the percentage of the marital estate each party receives. An unequal division might result in a few percentage points, perhaps 53% and 47% of the marital estate, which can be significant, especially when the marital estate is sizeable and/or the court divides retirement benefits. But there has been one NC Court of Appeals case that affirmed a fairly extreme, and rare, ruling that the marital estate would be divided on a 25% and 75% basis. Barlowe v. Barlowe, 113 N.C. App. 797 (1994). An unequal division might also reflect the reality that a significant asset was given to one party, and there aren’t enough remaining assets to give to the other spouse an equal share. 

The Judge may consider the following factors to decide whether the parties should have an equal or unequal division. While the factors look specific, they are quite flexible and recognize there are many different situations and circumstances. Ultimately, the factors serve as examples of valid reasons to consider an unequal division because the last factor is “Any other [factor] which the court finds to be just and proper factor.”

(1)  The income, property, and debts and liabilities of each party at the time of the trial.

(2) Any support obligation from a former spouse/marriage.

(3) How long the parties were married, and their ages, physical and mental health.

(4)  Whether the custodial parent of a child needs to remain in the home and use household property (furniture, dishes, etc.).

(5)  The anticipated retirement benefits one spouse owns as his or her separate property.

(6) Certain contributions of separate property (i.e., funds in a bank account owned before marriage) towards marital property, or contributions of (or lack of) services as a parent, wage earner or homemaker.

(7)  Certain efforts to help educate a spouse, or to develop his or her career potential.

(8)  Acts by one spouse to increase the value of the other spouse’s separate property.

(9)  The liquid or non-liquid nature of the property.

(10) The difficulty of actually dividing the asset between two spouses. For example: a businesses that would drop in value if both former spouses, instead of one spouse, own and operate it.

(11) The tax consequences related to the assets.

(11a) Acts of either party to preserve, develop and maintain property after the parties separate and before the property trial. Also, acts that waste, neglect, devalue or convert the property after separation.

(11b) In the event either party dies before there is a trial, the court ruling on the division of marital property must consider the inheritance and estate consequences of his or her death.

(12) Any other which the court finds to be just and proper factor.

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2016. www.AmyEdwardsFamilyLaw.com  © 2016. 

 

 

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